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Members,

 

Below is the rough draft modification to Iowa Statute 598.41(5)(A).  We are still in the process of finalizing this draft to submit as a BILL this session.  The yellow highlighted area is the specific section being modified and bold words are what we are attempting to have added. Once we have finalized this BILL and it is introduced as legislation, IowaFathers.com needs your assistance in lobbying and contacting legislators urging them to support this modification.

 

 

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598.41 Custody of children.

1. a. The court, insofar as is reasonable and in the best interest of the child, shall order the custody award, including liberal visitation rights where appropriate, which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents after the parents have separated or dissolved the marriage, and which will encourage parents to share the rights and responsibilities of raising the child unless direct physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact with one parent.

b. Notwithstanding paragraph "a" , if the court finds that a history of domestic abuse exists, a rebuttable presumption against the awarding of joint custody exists.

c. The court shall consider the denial by one parent of the child's opportunity for maximum continuing contact with the other parent, without just cause, a significant factor in determining the proper custody arrangement. Just cause may include a determination by the court pursuant to subsection 3, paragraph "j" , that a history of domestic abuse exists between the parents.

d. If a history of domestic abuse exists as determined by a court pursuant to subsection 3, paragraph "j" , and if a parent who is a victim of such domestic abuse relocates or is absent from the home based upon the fear of or actual acts or threats of domestic abuse perpetrated by the other parent, the court shall not consider the relocation or absence of that parent as a factor against that parent in the awarding of custody or visitation.

e. Unless otherwise ordered by the court in the custody decree, both parents shall have legal access to information concerning the child, including but not limited to medical, educational and law enforcement records.

2. a. On the application of either parent, the court shall consider granting joint custody in cases where the parents do not agree to joint custody.

b. If the court does not grant joint custody under this subsection, the court shall cite clear and convincing evidence, pursuant to the factors in subsection 3, that joint custody is unreasonable and not in the best interest of the child to the extent that the legal custodial relationship between the child and a parent should be severed.

c. A finding by the court that a history of domestic abuse exists, as specified in subsection 3, paragraph "j" , which is not rebutted, shall outweigh consideration of any other factor specified in subsection 3 in the determination of the awarding of custody under this subsection.

d. Before ruling upon the joint custody petition in these cases, unless the court determines that a history of domestic abuse exists as specified in subsection 3, paragraph "j" , or unless the court determines that direct physical harm or significant emotional harm to the child, other children, or a parent is likely to result, the court may require the parties to participate in custody mediation to determine whether joint custody is in the best interest of the child. The court may require the child's participation in the mediation insofar as the court determines the child's participation is advisable.

e. The costs of custody mediation shall be paid in full or in part by the parties and taxed as court costs.

3. In considering what custody arrangement under subsection 2 is in the best interest of the minor child, the court shall consider the following factors:

a. Whether each parent would be a suitable custodian for the child.

b. Whether the psychological and emotional needs and development of the child will suffer due to lack of active contact with and attention from both parents.

c. Whether the parents can communicate with each other regarding the child's needs.

d. Whether both parents have actively cared for the child before and since the separation.

e. Whether each parent can support the other parent's relationship with the child.

f. Whether the custody arrangement is in accord with the child's wishes or whether the child has strong opposition, taking into consideration the child's age and maturity.

g. Whether one or both the parents agree or are opposed to joint custody.

h. The geographic proximity of the parents.

i. Whether the safety of the child, other children, or the other parent will be jeopardized by the awarding of joint custody or by unsupervised or unrestricted visitation.

j. Whether a history of domestic abuse, as defined in section 236.2 , exists. In determining whether a history of domestic abuse exists, the court's consideration shall include, but is not limited to, commencement of an action pursuant to section 236.3 , the issuance of a protective order against the parent or the issuance of a court order or consent agreement pursuant to section 236.5 , the issuance of an emergency order pursuant to section 236.6 , the holding of a parent in contempt pursuant to section 236.8 , the response of a peace officer to the scene of alleged domestic abuse or the arrest of a parent following response to a report of alleged domestic abuse, or a conviction for domestic abuse assault pursuant to section 708.2A .

4. Subsection 3 shall not apply when parents agree to joint custody.

5. a. If joint legal custody is awarded to both parents, the court may award joint physical care to both joint custodial parents upon the request of either parent during the initial divorce proceeding or through a modification hearing. All joint physical care requests shall be presumptively in the best interests of the child(ren) and the party claiming joint physical care is not in the best interests of the child(ren) has the burden of proof in rebutting the presumption. If the court denies the request for joint physical care, the determination shall be accompanied by specific findings of fact and conclusions of law that the awarding of joint physical care is not in the best interest of the child pursuant to the "best interest of the child" definition established in section 598.1.

b. If joint physical care is not awarded under paragraph "a" , and only one joint custodial parent is awarded physical care, the parent responsible for providing physical care shall support the other parent's relationship with the child. Physical care awarded to one parent does not affect the other parent's rights and responsibilities as a joint legal custodian of the child. Rights and responsibilities as joint legal custodian of the child include, but are not limited to, equal participation in decisions affecting the child's legal status, medical care, education, extracurricular activities, and religious instruction.

6. If the parties have more than one minor child, and the court awards each party the physical custody of one or more of the children, upon application by either party, and if it is reasonable and in the best interest of the children, the court shall include a provision in the custody order directing the parties to allow visitation between the children in each party's custody.

7. When a parent awarded legal custody or physical care of a child cannot act as custodian or caretaker because the parent has died or has been judicially adjudged incompetent, the court shall award legal custody including physical care of the child to the surviving parent unless the court finds that such an award is not in the child's best interest.

8. If an application for modification of a decree or a petition for modification of an order is filed, based upon differences between the parents regarding the custody arrangement established under the decree or order, unless the court determines that a history of domestic abuse exists as specified in subsection 3, paragraph "j" , or unless the court determines that direct physical harm or significant emotional harm to the child, other children, or a parent is likely to result, the court may require the parents to participate in mediation to attempt to resolve the differences between the parents.

[82 Acts, ch 1250, §2]

84 Acts, ch 1088, §2, 3, 4, 5; 85 Acts, ch 67, §57, 58; 86 Acts, ch 1179, §5, 6; 95 Acts, ch 182, §22 - 24; 95 Acts, ch 183, §2; 97 Acts, ch 175, §199, 200; 99 Acts, ch 115, §1; 2004 Acts, ch 1169, §1

Subsection 5 amended

 

 


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"Political reasons have not the requisite certainty to afford juridical interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under a government of individual men, who for the time being have the power to declare what the Constitution is, according to their own views of that it ought to mean." Dred Scott v.Sanford, 19 How. 393, 620 (1857) (Curtis, J., dissenting).
Winston50703

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Reply with quote  #2 

I like the way your modification is worded and I strongly support it.  This is a law that Iowa has needed for a very long time.  I'm tired of the courts always awarding custody to the mother when either parent is just as capable of raising the child(ren). The current system promotes cutting down the other parent in order to obtain physical placement and then wonders why parents can not communicate effectively after the divorce. With Joint Physical Care, how can it be argued not in the child's best interest?  It can not unless the child is in physical danger. Furthermore it will prevent the current game of cutting down the other parent because there will be no need.  Think of the benefit to our children during the divorce process and after-wards. The most important benefit to our children is "Equal Access to Both Parents!"

 

This is the chance for all non-custodial parents to force the courts to be completely fair in custody arrangements.!!!  We may never get another chance like this so lets lobby like Des Moines has never seen before.  I'll contact legislators and I will be there lobbying, just let me know when.


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Quote:

5. a. If joint legal custody is awarded to both parents, the court may award joint physical care to both joint custodial parents upon the request of either parent during the initial divorce proceeding or through a modification hearing. All joint physical care requests shall be presumptively in the best interests of the child(ren) and the party claiming joint physical care is not in the best interests of the child(ren) has the burden of proof in rebutting the presumption. If the court denies the request for joint physical care, the determination shall be accompanied by specific findings of fact and conclusions of law that the awarding of joint physical care is not in the best interest of the child pursuant to the "best interest of the child" definition established in section 598.1.

 

Wow...whoever drafted this should be voted Governor!  Let me know where and when...I'll bring some of my single friends because you just never know.

Chad

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Reply with quote  #4 

We definitly need to pass this then make sure judges enforce it


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Quote:
The most important benefit to our children is "Equal Access to Both Parents!"

You are absolutely correct!  House File 22 opened the door but this modification will change the face of Iowa Law. Considering the divorce rate is around 50%, we must act now to preserve the "Iowa Family Unit." I look forward to working with each of you this session to modify 598.41.

 

Quote:

This is the chance for all non-custodial parents to force the courts to be completely fair in custody arrangements.!!!  We may never get another chance like this so lets lobby like Des Moines has never seen before.  I'll contact legislators and I will be there lobbying, just let me know when.

I'm hopeful every non-custodial parent in Iowa will support this BILL.  The more support, the better the chance of success.

 

Quote:
 

Wow...whoever drafted this should be voted Governor!

This was drafted by a Board formed between the leaders of IowaFathers.com, Children Need Both Parents, Fathers for Equal Rights, Empowering Dads, and with the help of a few state legislators.

 

Quote:

We definitely need to pass this then make sure judges enforce it

 

Again, I'm hopeful every non-custodial parent in Iowa will support this BILL.  The more support, the better the chance of success.  I'm requesting every non-custodial parent give one day this session so we can change the face of Iowa Law forever.


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"Political reasons have not the requisite certainty to afford juridical interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under a government of individual men, who for the time being have the power to declare what the Constitution is, according to their own views of that it ought to mean." Dred Scott v.Sanford, 19 How. 393, 620 (1857) (Curtis, J., dissenting).
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Reply with quote  #6 

I know several people at Omega that are divorced and struggling to see their kids.  I've told them about this website.  I think people are tired of the power trip some judges are on and the struggles fathers have to gain access to their kids.  I have no kids but my brother Bryan Iehl does and when he is denied visitation, the whole family is denied.  I'll take a day off work to lobby in Des Moines and even drive some other fathers in the Waterloo area wanting to attend. 

 

James

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Reply with quote  #7 

First of all everybody seems to be on the right track   and I would like to welcome James on board.  One of the key issues that Iowafathers is doing is trying to make a difference for the fairness of the child.  and From what I have been reading we are getting our ducks in a row.  Step by step  we will get it done .   Thanks everyone  and the biggest thanks needs to go to Bryan   for giving us a means to get these things done

 

B.J.

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UPDATE:  We are moving right along with this modification.  Several legislators are now involved with sponsoring and/or supporting this modification.

 

Members, are you ready to lobby in Des Moines to change the face of the Iowa Judicial System involving the placement of children?


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IowaFathers
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"Political reasons have not the requisite certainty to afford juridical interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under a government of individual men, who for the time being have the power to declare what the Constitution is, according to their own views of that it ought to mean." Dred Scott v.Sanford, 19 How. 393, 620 (1857) (Curtis, J., dissenting).
mweichers

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Reply with quote  #9 

I will follow you into battle any day Bryan!


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Reply with quote  #10 
Lets "Git er done!!!!" Let me know when where and how. 
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Reply with quote  #11 

Bryan....

 

Name the date and I'll be there, got a new(er) Caravan that would make it to Des Moines ASAP.

 

I can haul 6-7 non-custodial parents in it, the more the merrier! Let's ROLL!

 

Has a groovy CD-player too, although I bet we'd all be talking, rather than playing tunes.   

 

  


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Reply with quote  #12 
Let me know when!
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House Study Bill 606
  
                                                         HOUSE FILE 
                                                                 BY  (PROPOSED COMMITTEE ON
                                                                     JUDICIARY BILL BY
                                                                      CHAIRPERSON PAULSEN)
 
 
    Passed House,  Date               Passed Senate, Date             
    Vote:  Ayes        Nays           Vote:  Ayes        Nays         
                 Approved                            
 
                                      A BILL FOR
 
  1 An Act relating to joint physical care of children in dissolution
  2    cases.
  3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
  4 TLSB 6133YC 81
  5 pf/cf/24
 
PAG LIN
 
 
 
  1  1    Section 1.  Section 598.41, subsection 5, paragraph a, Code
  1  2 Supplement 2005, is amended to read as follows:
  1  3    a.  If joint legal custody is awarded to both parents, the
  1  4 court may award joint physical care to both joint custodial
  1  5 parents upon the request of either parent during the
  1  6 proceedings on the initial dissolution petition or during the
  1  7 proceedings on a modification of the original custody order.
  1  8 A rebuttable presumption exists that a request for joint
  1  9 physical care by either parent is in the best interest of the
  1 10 child and the burden of proof to rebut the presumption rests
  1 11 on the party denying that joint physical care is in the best
  1 12 interest of the child.  Prior to ruling on the request for the
  1 13 award of joint physical care, the court may require the
  1 14 parents to submit, either individually or jointly, a proposed
  1 15 joint physical care parenting plan.  A proposed joint physical
  1 16 care parenting plan shall address how the parents will make
  1 17 decisions affecting the child, how the parents will provide a
  1 18 home for the child, how the child's time will be divided
  1 19 between the parents and how each parent will facilitate the
  1 20 child's time with the other parent, arrangements in addition
  1 21 to court=ordered child support for the child's expenses, how
  1 22 the parents will resolve major changes or disagreements
  1 23 affecting the child including changes that arise due to the
  1 24 child's age and developmental needs, and any other issues the
  1 25 court may require.  If the court denies the request for joint
  1 26 physical care, the determination shall be accompanied by
  1 27 specific findings of fact and conclusions of law that the
  1 28 awarding of joint physical care is not in the best interest of
  1 29 the child.  In determining the best interest of the child
  1 30 relative to the denial of a request for joint physical care,
  1 31 the court shall consider that the best interest of the child
  1 32 includes the opportunity for maximum continuous physical and
  1 33 emotional contact possible with both parents, unless direct
  1 34 physical or significant emotional harm to the child may result
  1 35 from this contact.
  2  1                           EXPLANATION
  2  2    This bill provides that in awarding joint physical care to
  2  3 parents under the dissolution of marriage chapter, joint
  2  4 physical care may be awarded to both parents based upon a
  2  5 request by either parent either during the proceedings on the
  2  6 initial dissolution petition or during the proceedings on a
  2  7 modification of the original custody order.  The bill creates
  2  8 a rebuttable presumption that a request for joint physical
  2  9 care by either parent is in the best interest of the child and
  2 10 places the burden of proof to rebut the presumption on the
  2 11 party denying that joint physical care is in the best interest
  2 12 of the child.   In determining the best interest of the child
  2 13 relative to the denial of a request for joint physical care,
  2 14 the court is to consider that best interest of the child
  2 15 includes the opportunity for maximum continuous physical and
  2 16 emotional contact possible with both parents, unless direct
  2 17 physical or significant emotional harm to the child may result
  2 18 from this contact.
  2 19 LSB 6133YC 81
  2 20 pf/cf/24

 


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IowaFathers
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support@IowaFathers.com
Website: http://www.IowaFathers.com
Visit us on facebook under Groups: Iowa Fathers



"Political reasons have not the requisite certainty to afford juridical interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under a government of individual men, who for the time being have the power to declare what the Constitution is, according to their own views of that it ought to mean." Dred Scott v.Sanford, 19 How. 393, 620 (1857) (Curtis, J., dissenting).
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